INTRODUCTION
The
common law definition of marriage is espoused form the case of Hyde v. Hyde
where, marriage was stated to be a voluntary union for life of one man and
one woman, to the exclusion of all others. In Zambia the same definition is
adopted as the statutory definition of marriage, however, this definition cannot
be said to be true for a customary marriage because it is polygamous in nature.
For a statutory(civil) marriage to be valid it must be conducted in accordance
with the provisions of the Marriage Act and the Matrimonial
Causes Act, whereas,
the validity of a customary marriage is dependent upon the tribe and customs
under which it has been conducted. A statutory marriage that falls below the
requirement of what is required by law or for a customary marriage the
requirement of a particular custom is regarded as a nullity. Under nullity of marriage, a marriage may
either be void or voidable. It is void when it is regarded as never having
existed and no decree of nullity is required to invalidate the marriage because
it never existed in the first place. If it is voidable, it stands valid until
one(both) of the parties to it decide to annul it by seeking for a decree of
nullity from the court. This essay discusses ground on which a marriage can be
declared a nullity.
A VOID MARRIAGE
To
begin with, section 27(1)(a)(b)(c) of the Matrimonial Causes Act sets
out the grounds upon which a marriage will be declared void, the grounds
include the following;
A
marriage whether statutory or customary is void, if the parties to the marriage
fall within the prohibited degrees of consanguinity or affinity. The implication,
is that parties intending to marry must not be related either by blood or
marriage. A prohibited degree is a relationship that is so close between family
members that the law forbids or bans marriage among such people, for example a
marriage between sisters, brother or cousins, the list is endless. In Durga
v. Ismael Durga, where, parties went through a marriage ceremony but they never cohabited
or consummated their marriage because they discovered immediately after the
ceremony that they were consanguineous (the parties were blood cousins). The
petitioner sought a declaration of nullity. The
Court held the view that. the parties were blood cousins and therefore fall
within the prohibited degrees of relationship and should not have contracted
the marriage. The marriage was declared null and void ab initio and whether or
not it was consummated did not matter. The rationale for this is to prevent
inheritable conditions that would express themselves only when carries of bad
genes such as members of the same family mate.
The
other ground is where either of the parties was under the age of sixteen. Age
is a very cardinal aspect for a valid marriage and the lack of knowledge by
either party is irreverent. The Matrimonial Causes Act, places
marriageable age at sixteen years, but the Children’s Code Act adopting
the Constitutional definition of who a child is, provides that, a child is a
person who is below eighteen or has attained the age of eighteen. This
means that a marriage conducted when either of the party is sixteen is a void
marriage. In December, 2023 the Marriage Act was amended to
outlaw child marriages and the minimum marriageable age was raised to 18 for
all marriages including customary marriage. In the case of customary marriages,
the position before the amendment to the Marriage Act was that, a girl who has
reached puberty was of marriageable age provided there was consent from the
parents. But with the current amendment a marriage with a minor is void with or
without parental consent.
The
third ground is where, the parties have not complied with the requirements
of the Marriage Act with respect to the solemnisation of the marriage.
The requirements include, that the marriage be solemnized in any licensed place
of worship by any licensed minister of the church, denomination or body.
Additionally, that the marriage be solemnized with open doors between the hours
of six o'clock in the forenoon and six o'clock in the afternoon, and in the
presence of two or more witnesses besides the officiating minister.
A
marriage is regarded as a nullity if either party to the marriage was lawfully
married to some other person at the time of the marriage. A statutory marriage
is a marriage between one man and one woman and if a person attempts to
contract another marriage, they commit the offense of bigamy. Section 166 of
the Penal Code Act, provides that, a person who, having a husband or
wife living, goes through a ceremony of marriage with another person is guilty
of the offence of bigamy and that such a marriage is void. A person commits
the offence of bigamy only when he or she contracts a marriage while in a
subsistent marriage, thus, a charge of bigamy cannot stand where a person
contracts a second marriage when the first marriage one was void. In the People v. Chitambala It
was stated that, a statutory marriage
cannot be dissolved by a customary law divorce and the parties are not
free to remarry. As for customary marriages they are polygamas in nature and a
man is allowed to marry more than one woman thus, this ground cannot stand.
The
last ground is where the parties to the marriage are of the same sex.
Same sex marriages involve marriage between a man and a fellow man or a woman
and a fellow woman. Homosexual marriages have not yet been recognised in
Zambia, such marriages are regarded as unnatural and to be offences against nature.
The Penal Code Act under section 155(a), criminalises carnal knowledge
of any person against the order of nature. A marriage conducted between people
of the same sex at law is void i.e., never having been in existence.
A VOIDABLE MARRIAGE
Nullity
of marriage not only includes void marriages but also voidable marriages, the
grounds on which a marriage is declared voidable are discussed below;
The
Matrimonial Causes Act under section 29(a)(b)(c)(d)(e)(f), provides the
instances on which a marriage may be declared voidable. As mentioned above a
voidable marriage is a marriage that is valid until either of the party to the
marriage seeks to invalidate its existence. The first ground that renders a
marriage voidable is if the marriage has not been consummated due to the incapacity
of either party to consummate it. Consummation is an act of sexual intercourse
after the marriage ceremony, to satisfy consummation the sexual intercourse
must be complete i.e., there must be an erection and penetration for a
reasonable period of time. In D v. A, it
was stated that, consummation requires only to “ordinary and complete” rather
than, “partial and imperfect”. Further, the incapacity must be one that is
permanent or incurable, and the fact that the parties have had sexual
intercourse before the commencement of the marriage is irreverent because what
counts is the first act of sexual intercourse after the marriage, then the
marriage is said to have been consummated. For this ground to stand, it must be
shown that the incapacity by either party that has resulted in the failure to
consummate the marriage was not made known at the time the marriage was
contracted.
Another
ground is that of the willful refusal to consummate the marriage, this involves
a situation where there is an intention by a one party not to consummate the
marriage. The court is satisfied that there is willful refusal when any request
by the petitioner to consummate the marriage has been ignored by the
respondent. In the case of Ford v. Ford, where,
a man contracted a marriage while he was in prison and was at the time unable
to consummate the marriage, after he was released from prison, he clearly
refused to consummate the marriage. When the petitioner sought for a decree of
nullity it was allowed on the basis that the man expressed a clear intention that
he did not want to consummate the marriage. It is then important to draw a
distinction between incapacity to consummate the marriage and willful refusal
to consummate the marriage. Incapacity involves a situation where there is some
form of physical or psychosocial incapacity that prevents a party from
consummation whereas, willful refusal encompasses a situation where a party
express an intending of not wanting to consummate the marriage.
The
other ground is, if a party to the marriage did not validly consent to it, whether
in consequence of duress, mistake, unsoundness of mind. Consent is an essential
element for a valid marriage, the consent must be freely given and without
coercion for it to be valid. In Scott v. Sebright, a decree of nullity
was sought on the ground of fraud and duress, the man had threatened to shoot
her if she had not proceeded with the marriage. The marriage had taken place
but the parties separated immediately after the marriage. The court granted the
decree on the ground that the consent was not given genuinely. Hyde v. Hyde
provides that marriage is a voluntary union, meaning that people must go into
such a union out of free choice and will. Further, a marriage is voidable at
the time of the marriage either party, though capable of giving a valid
consent, was suffering, whether continuously or intermittently, from a mental
disorder which renders it to be unfitted for marriage.
It
is a valid ground to render a marriage a nullity if at the time of the marriage
the respondent was suffering from a sexually
transmitted disease in a communicable. The rationale is that there should
be no concealment of a sexually transmitted disease because it is something
that can affect the other party’s health in a negative way. A marriage is
supposed to be based on consent and for consent to be valid it must be given
with the full disclosure of any relevant information.
The
last ground for rendering a marriage voidable is if at the time of the marriage
the respondent was pregnant by someone other than the petitioner.
Nullity
of marriage looks at factors that question the validity of the marriage, these
factors can either render the marriage void or voidable. In a void marriage the
parties do not gain the status of husband and wife as the marriage is not
formed at all whereas, in a voidable marriage, the parties do gain a status of
husband and wife not until either of the party decides to invalidate it.
REFERENCES
STATUTES
The Constitution
of Zambia
The Marriage Act Chapter
50 of the Laws of Zambia.
Act No. 13 of
2023, The Marriage (Amendment)Act.
The Matrimonial
Causes Act No. 20 of 2007.
The Penal Code Act
Chapter 87 of the laws of Zambia
CASES
Haiz Auyub Durga v. Najmunnisa Ismael Durga (1990 - 1992) H.R.
189 (H.C.)
The People v.
Chansoke (1978) 10 Zam.L.j.90.
The People v. Chitambala (1969) Z.R 142 (HC)
D v. A (1845) 163
ER 1039.
Ford
v. Ford (1987) Fam Law 232.
Scott
v. Sebright 1886 LR 12 PD 21.
Hyde
v. Hyde (1866).
This Article is Brought to you by:
LEGAL AID INITIATIVE
(Access to Knowledge )
About the Author:
Kunda Mulenga is a third-year law student at the University of Zambia and serving as
the Secretary General of Legal Aid Initiative.